In this case, a suspected drug dealer was observed during a controlled [drug] buy. Backup officers were dispatched to apprehend the suspect, who ran into an apartment: either the door on the left or the door on the right. HINT: the suspect entered the door on the right. The responding officers testified they smelled marijuana coming from the door on the left. They pounded on the door and announced themselves: “police!” The people inside did not open the door and were heard “moving around.” Suspicious that “evidence” was being destroyed, the police kicked in the door and searched the apartment. The occupant was charged with drug possession.
The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There are exceptions to the warrant requirement, but searches of a home have, in the past, been considered to be presumptively unreasonable. One of the exceptions to the warrant requirement is “exigent circumstances:” such as if someone is crying for help inside, or the police are in hot pursuit. However, until Monday, a circumstance is not exigent if the police themselves create it; i.e. they knock-and-announce thereby inducing panic. The United States Supreme Court (8-1) held that:

“the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”

The Court so held even while acknowledging that “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer, 460 U. S. 491, 497–498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” Chambers, 395 F. 3d, at 577 (Sutton, J., dissenting). And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.” Yet, now, police may “hear moving around” on the other side of that door and kick it down?

The most inexplicable statement in Monday’s Opinion is this: “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.” There was nothing in the record that evidence was actually being destroyed. In point of fact, the occupants, who were arrested and prosecuted, were inside their own apartment minding their own business.

My opinion is that, in this era of telephonic warrants, there is no reasonable justification under a fact pattern such as this for not requiring a warrant. I found Justice Ginsberg’s Dissent much more persuasive: “In no quarter does the Fourth Amendment apply with greater force than in our homes, our most private space which, for centuries, has been regarded as “‘entitled to special protection.’ ”Georgia v. Randolph, 547 U. S. 103, 115, and n. 4 (2006); Minnesota v. Carter, 525 U. S. 83, 99 (1998) (KENNEDY, J., concurring). Home intrusions, the Court has said, are indeed “the chief evil against which . . . the Fourth Amendment is directed.” Payton, 445 U. S., at 585 (internal quotation marks omitted); see Silverman v. United States, 365 U. S. 505, 511 (1961) (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.”).“ ‘[S]earches and seizures inside a home without a warrant are [therefore] presumptively unreasonable.’ ”Brigham City, 547 U. S., at 403 (quoting Groh, 540 U. S., at 559). How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”

Not. Very.

The unsatisfactory epilogue to this case is thus: A. The police eventually located the original suspect in the apartment on the right. B. The occupant in the apartment on the left won at the state level. His conviction, the result of a “conditional plea” had been reversed by the Kentucky Supreme Court. Afterward, the charges at the trial court level were dismissed. Monday’s Opinion merged and reinstated his conviction.

Yesterday’s Deseret News had a very nice article on the Rocky Mountain Innocence Center, and our good friend Jensie Anderson, who leads the team of law students from Utah, Wyoming and Nevada, as they investigate claims of innocence from prisoners in these states.

It’s nice to see the media recognize and appreciate the hard work of these volunteers in their efforts to pursue justice on behalf of those whom may have been wrongfully convicted and whose voices may not otherwise be heard.

Today’s New York Times has an article on the risks of wi-fi hackers; the article makes reference to new readily-available software that apparently makes it easy to eavesdrop on the communications of others in non-secure wireless networks.

Everyone should be concerned about this and govern themselves accordingly when using unsecured wireless access, but we also remind our clients and friends not to assume that any email can be assured to be confidential and privileged.

And hackers are not the only threat.

In addition to hackers, there’s the very real risk of an inadvertent inclusion of an unintended recipient, or a misspelled address, or a snoopy business colleague, spouse or other family member who has access to the computer on the other end.

So, if you need a lawyer, particularly a lawyer in a situation where you face potential prosecution, call; don’t email.

Utahcriminallaw is the third blog brought to you by the lawyers at Hobbs & Olson, L.C.. We won’t be able to share many (if any) of our own stories on this blog, but we will comment on what we see and read. It has potential to be the most interesting and amusing of our blogs, since Utahcriminallaw is generally more interesting than Utahcondolaw and even Utahgreenlaw.

Hobbs & Olson is a small firm with a general litigation practice. Margaret Olson is the firm’s criminal defense lawyer, with over 18 years of practicing in Utah and Idaho. (both as a prosecutor and now as a defense lawyer).

Lincoln Hobbs practices almost exclusively in the civil litigation arena, but shares a fascination of the criminal justice system and a passion for the protection of civil rights, which is reflected in his 20+ years of participation in the legal panel for the American Civil Liberties Union of Utah, of which he is currently the legal panel chair.